TO 


MODERN  LEGISLATORS, 


AND 


REFLECTIONS  ON  CHOOSING  MEMBERS 


OF  THE 

APPROACHING  CONVENTION. 


"Anguish  of  mind  has  driven  thousands  to  suicide:  anguish  of  body — 
none :  this  proves  that  the  health  of  the  mind  is  of  far  greater  consequence 
than  the  health  of  the  body,  although  both  are  deserving  of  much  more 
attention  than  either  receive." — LACON. 


BY  A  MEMBER  OF  THE  NEW  YORK  BAR. 


J.  A.  FUAKTAS,  PRTNTF.U. 
1846. 


UCSB  LIBRARY 


CHAPTER  I. 

GENERAL  OBSERVATIONS. 

In  the  same  degree  as  the  mind  is  supeiior  to  the  body,  is  it  important 
that  any  improvement  in  things  which  affect  it,  should  be  discussed  and 
adopted,  yet,  although  a  man  would  be  immortalized  who  should  discover 
a  new  thing  affecting  the  body  or  its  comforts,  or  convenience?,  he  will 
hardly  be  thanked  if  he  points  out  an  improvement  ever  so  beneficial  to 
the  mind — the  world  appreciates  that  whieh  is  tangible,  and  to  a  great 
extent  that  only,  and  yet  our  bodies  are  mainly  preserved  or  destroyed 
by  that  which  affects  the  mind. 

The  world  takes  no  note  of  the  thousands  who  die  of  diseases  of  the 
mind — but  if  ten  cases  occur  of  yellow  fever  or  cholera,  all  sympathize,  all 
trembL ;  a  little  reflection  nevertheless,  will  prove  that  during  the  last 
ten  years,  more  have  died  of  the  "  panic"  "  the  suspension  of  specie 
payments,"  and  the  "  great  fires,"  than  of  the  yellow  fever,  the  cholera, 
or  the  small  pox.  All  were  struggling  to  discover  antidotes  for  the 
cholera,  but  scarce  any  one  has  given  a  thought  of  the  proper  remedy  for 
ruined  fortune,  crushed  hopes,  or  broken  hearts. 

This  apathy  to  that  which  so  deeply  concerns  the  prosperity  and  hap- 
piness, nay,  to  some  extent  the  very  existence  of  every  one  of  us,  is  one 
of  those  unaccountable  inconsistencies  which  has  ever  existed  with  the 
mass  of  mankind,  indeed  it  seems  as  if  man  was  ever  ready,  and  ever 
willing  to  perform  any  other  labor  than  the  labor  of  thinking,  and  hu- 
man nature  seems  prone  to  believe  that  to  better  his  condition  his  hands 
are  more  useful  than  his  head — yet  those  hands  are  blind  guides  without 
some  head  to  think  for  them. 

As  civilization  has  marched  onward- -the  most  obvious  improvement 
has  been  made  in  almost  every  branch  of  science,  yet  except  by  abolish- 


ing  imprisonment  for  debt,  and  somewhat  limiting  capital  punishment, 
it  is  difficult  to  discover  a  corresponding  melioration  or  improvement  in 
the  application  of  the  laws  to  the  real  state  and  condition  of  man  ;  the 
law  as  it  was,  and  as  it«is  to  a  great  extent,  seems  to  be  formed  and  ad- 
ministered toward  men  as  if  they  had  nothing  but  bodies  to  be  affected 
by  it — and  as  if  its  effects  could  reach  no  further  than  bones  and  mus- 
cles,— but  experience  has  proved,  alas,  that  the  barb  penetrates  deeper, 
and  reaches  both  nerves  and  brain. 

If  a  man  is  attacked  with  an  alarming  illness,  his  safety  and  his  re- 
covery becomes  the  duty  of  those  nearest  to  him — and  there  is  instantly 
a  laudable  emulation  awakened  amongst  men  to  staunch  his  sudden 
wound,  or  to  sooth  and  supply  his  helplessness-  -benevolence  seems  to 
flow  towards  him  as  a  matter  of  course,  as  well  from  the  good  as  the 
bad ;  the  physician,  pay  or  no  pay,  yields  his  experience  and  his  drugs, 
the  individual  into  whose  hands  he  falls  gives  half  the  loaf  of  his  chil- 
dren to  supply  his  necessities,  and  under  the  penalty  of  the  curse  of  the 
whole  community  dare  neither  do  less. 

But  shift  the  scene  ;  let  the  misfortune  or  the  vices  of  others,  or  his 
own  want  of  judgment — or  more  likely  still  the  mis-government  of  the 
country,  reduce  an  equally  meritorious  man  to  insolvency  and  ruin — 
let  him  contemplate  the  tender  partner  of  his  bosom  bereft  of  the  com- 
forts and  appliances  to  which  she  was  born  and  with  which  she  has 
been  happy  :  let  him  feel  his  inability  to  continue  the  education,  perhaps 
the  very  food  of  a  beloved  set  of  children — let  him  see  bright  hopes 
dead — ample  provision  for  old  age  gone  forever — the  world's  face  avert- 
ed and  his  season  of  manly  effort  passing,  or  past — if  by  this  time  his 
mind  is  not  sick — if  the  incipient  stages  of  a  consumption,  or  a  broken 
heart  are  not  on  him — it  must  be  because  he  has  no  mind  to  be  affected, 
and  he  is  therefore  a  brute ;  (of  such  I  am  not  treating; — is  the  man  thus 
affected  less  an  object  of  compassion  and  of  tender  regard  than  he  to 
whom  the  generous  Physician  so  promptly  afforded  his  aid  ?  Reader 
let  me  appeal  to  your  experience  of  others,  if  not  to  what  you  have 
felt  yourself,  as  to  which  of  the  two  patients  the  most  commiseration  is 
due — and  yet  pause  and  blush  for  the  dissimilar  treatment  which  they 
receive  ;  for  the  disease  of  the  body  the  treatment  is  kindness,  benevo- 
lence, pity — for  that  of  the  mind  contempt,  insult,  extortion — and  yet 
the  one  disease  kills  even  more  surely  than  the  other — let  me  ask  you  how 


many  have  you  personally  known  after  some  sad  reverse  of  fortune,  to 
hasten  to  an  insolvent's  grave,  by  the  way  of  the  inward  gnawings  of 
concentrated  and  concealed  griefs,  and  hopeless  remedy :  the  more  com- 
mon auxiliary,  the  bottle— the  more  gradual  approaches  of  consumption 
or  the  more  prompt  application  of  the  pistol,  or  the  briny  wave — if  this 
be  so,  benevolence,  philanthropy — nay,  more,  common  humanity — be- 
yond this,  (justice)  to  such  a  man.  and  above  all  to  the  innocents  depend- 
ant on  him,  calls  on  us  all  for  at  least  an  attempt  to  apply  a  remedy. — 
How  sadly  is  the  law  as  it  exists,  adapted  to  this  purpose — the  moment 
a  man  is  thus  circumstanced,  the  signal  is  given  to  the  minister  of  the 
Laws — then  instead  of  the  consoling  kindness  of  a  friend,  he  receives 
the  unwelcome  visit  of  the  tipstaff'.  The  practising  attorney  takes  the 
place  of  the  benevolent  physician — the  remnant  of  his  wealth,  before 
barely  sufficient  to  its  last  cent,  to  meet  the  just  demands  of  his  creditors, 
is  at  once  exposed  to  the  additional  exactions  of  taxed  costs — sheriff's 
poundages,  and  the  various  other  tender  mercies  of  the  law — his  name  is 
bawled  forth  in  your  public  tribunals — his  inahility  (promptly  to  pay) 
is  spread  over  the  parchments  of  your  Courts — the  last  remnant  of  credit 
and  of  hope  deserts  him,  and  he  feels  himself  to  be,  as  he  is,  a  "doomed 
man" — what  a  paradox  is  this  state  of  things  ?  Our  country  is  said  to 
be  our  parent — to  her,  and  her  voice  as  heard  in  the  laws,  we  look  for 
admonition,  direction  and  protection — should  we  not  find  emanating 
from  that  mother  too,  somewhat  of  endurance,  somewhat  of  tenderness, 
something  of  relief  ?  Alas,  no  such  soothing  qualities  are  there ;  she 
contemplates  her  child  already  staggering  under  his  load  of  debts  and 
embarrassments  ;  she  sees  that  one  feather  more  will  break  his  back,  and 
with  a  heathen  kindness,  she  promptly  gives  him  a  multitude  through  her 
ministering  angels  of  the  law.  What  would  be  said  to  that  Levite,  who 
not  content  with  passing  on  the  other  side,  should  have  thrown  dust  in- 
to the  wounds  of  the  stranger,  and  thus  prevented  the  Samaritan  from 
binding  them  up  ? 

It  is  not  always  sufficient  to  point  out  an  evil ;  the  work  is  then  at 
best  but  half  done — and  although  in  so  vital  and  deep  rooted  a  disease 
as  the  one  in  question,  a  perfect  remedy  cannot  be  expected  ;  yet  a  few 
hints  may  happily  set  our  readers  to  thinking  and  improving  on  the  plan 
now  presented.  There  are  many  amongst  us  who  are  well  paid  in  gold 
and  in  honors  for  doing  our  thinking  for  us ;  to  them  then — our  Chan- 
cellors, Judges,  Statesmen,  Legislators,  the  Members  of  the  next  Con- 


vention — I  appeal  and  respectfully  submit  the  following  ideas  and  sug- 
gestions :  First,  a  radical  change  in  the  principles  of  our  Insolvent  Laws : 
and,  Second,  a  modification  and  improvement  in  the  application  of  the 
law  for  the  collection  of  debts. 


CHAPTER  II. 

ON   A    PROPOSED    CHANGE   IN   THE   PRINCIPLES   OF   THE   INSOLVENT   LAWS. 

The  changes  I  propose,  embrace,  mainly,  a  more  extensive  use  of  the 
trial  by  Jury ;  the  adaptation  of  some  of  the  principles  of  the  bankrupt 
laws  of  Great  Britain,  and  above  all,  a  principle  of  protection  instead  of 
persecution.  First,  I  premise  that  unless  an  honest  man's  faculties  have 
become  palpably  impaired  either  by  his  pecuniary  disasters  or  by  bad 
habits,  he  is  the  most  fit  person  to  continue  in  the  management  of  his 
own  affairs,  provided  this  can  be  done  with  a  proper  regard  to  the  safety 
of  his  creditors,  himself  and  his  family.  Hence,  upon  its  being  ascer- 
tained that  a  man  cannot  meet  his  engagements  as  they  become  due,  he 
should  be  protected  in  the  use  and  management  of  his  properly,  and 
against  suit,  annoyance,  or  expense,  by  presenting  a  true  statement  of  his 
affairs  to  a  proper  officer,  who,  for  the  benefit  of  his  creditors,  should 
take  from  him  proper  security  for  the  application  of  the  property  under 
his  direction,  with  the  power  of  devoting  to  him  a  certain  allowance  so 
long  as  his  services  were  beneficial  or  requisite,  or  if  deemed  more  fit, 
that  the  property  be  placed  with  certain  experienced  trustees,  to  be  so 
applied  and  used  as  they,  under  the  direction  of  the  officer,  might  de- 
cide ;  or  the  like  exemption  might  be  extended  in  point  of  time  only :  or 
it  might  be  combined  with  the  condition  of  paying  so  much  per  cent, 
periodically,  until  the  debt  was  dscharged,  or  the  property  might  be 
taken  at  once,  and  the  debtor  set  free ;  and  if  the  debtor  on  the  one 
hand,  or  the  creditor  on  the  other,  were  dissatisfied  with  the  equitable  di- 
rections of  the  officer  or  trustees,  then  a  Jury  should  be  interposed' 
whose  verdict  should  furnish  the  rule. 

The  privilege  of  instituting  this  process  should  belong  also  to  the 
creditor  upon  any  act  of  bankruptcy  being  committed,  and  perhaps  in 
other  cases  which  will  suggest  themselves. 


The  effect  of  these  provisions  would  be,  that  an  honest  man  could  go 
on  with  his  business,  collect  his  outstanding  dues  to  the  full  payment  of 
his  creditors,  and  to  the  saving,  in  most  cases,  of  a  surplus  for  himself 
or  his  family.  The  benefits  to  him  would  be  such  that  the  concealment 
of  any  part  of  his  property  would  be  against  his  interest,  as  it  would 
decrease  his  ability  to  procure  the  required  security,  and  detract  from  the 
officer's  confidence  in  his  fitness  to  continue  in  the  management  of  his 
affairs  :  if  his  family  expenses  had  been  extravagant  or  unadapted  to  his 
estate,  the  restricted  allowance  would  at  once  reduce  it  to  a  prudent  and 
healthy  standard.  By  the  interposition  of  a  Jury,  that  kind  of  business 
knowledge  which,  in  every  vocation,  is  more  or  less  a  mystery,  would 
be  brought  to  the  aid  of  the  Judge  and  fitly  applied  to  the  case  in  hand  ; 
arguments  and  reasoning  to  the  Jury  upon  the  details  of  each  case  could 
be  gone  into,  and  the  propriety  of  this  or  that  course  fairly  investigated 
and  determined  on.  It  will  be  seen  in  all  this,  that  an  honest  man,  under 
the  worst  of  circumstances,  would  have  a  chance  to  enjoy  a  little  peace 
of  mind,  to  pay  his  debts,  and  retrieve  his  fallen  estate ;  thus  the  credi- 
tor would  get  his  debt,  and  the  communily  have  a  valuable  and  a  tried 
man  preserved  to  them  and  his  family  ;  thus  protecting  the  community 
from  the  pauperism  of  the  children  of  the  debtor,  if  not  sometimes  of  the 
creditor,  too  :  in  other  words,  in  proportion  as  a  man  was  honest  and 
unfortunate,  should  the  application  to  him  of  the  law  be  tender,  liberal 
and  merciful.  It  should  be  made  his  interest  to  be  frugal,  industrious 
and  honest ;  but  as  the  law  stands,  it  is,  I  fear,  his  interest  to  be  the  re- 
verse. 

It  is  a  singular  fact,  that,  in  some  of  the  features  of  the  foregoing,  there 
is  a  striking  analogy  to  the  doctrine  of  extents,  which  has  fallen  into  dis- 
use or  been  exploded  from  the  law.  This  was  an  ancient  writ  by  which 
the  property  of  a  debtor  was  taken  from  him,  and  its  income  applied  to 
his  debts  until  they  were  paid,  when  it  was  given  back  to  him.  At  this 
day,  under  the  Spanish  laws,  there  is  a  similar  regulation.  So  far,  at 
least,  the  laws  of  this  enlightened  age  are  more  barbarous  than  those  of 
our  crude  forefathers,  or  of  other  nations  on  whom  we  look  as  vastly 
inferior  to  us  in  intelligence. 


CHAPTER  III. 

ON   THE   MODIFICATION    AND   IMPROVEMENT  IN  THE   APPLICATION    OF  THE 
LAW,   FOR   THE   COLLECTION   OF   DEBTS. 

It  has  often  occurred  after  a  severely  contested  trial  betwixt  two  fair 
men,  that  one  or  the  other  has  remarked  to  me,  that  if  he  had  known 
such  and  such  a  fact  had  existed,  on  the  other  side,  or  if  he  had  suppo- 
sed he  was  hound  to  do  this,  or  that,  he  never  would  have  brought  or 
defended  the  suit,  in  other  words,  I  have  seen  that  nine-tenths  of  the 
contests  between  decent  men  grow  out  of  an  entire  misapprehension,  or 
partial  ignorance  of  certain  facts  on  the  other  side  ;  to  a  good  man  it 
must  certainly  be  painful  that  such  a  controversy  should  exist,  to  the 
serious  injury  of  both  ;  indeed  there  is  scarce  a  litigated  case  where  the 
suitors  on  both  sides  could  not  at  the  threshold,  and  generally  where 
they  would  not  have  been  willing  to  give  up  and  soften  down  some  of 
their  strict  rights  on  both  sides  ;  for  prompt  pay  on  one  side,  and  to  es- 
cape from  anxiety  and  toil  on  the  other.  The  asperity  which  half  the 
time  leads  one  man  to  sue  another  should  have  some  safety  valve  at 
which  to  escape,  instead  of  being  tediously,  uselessly  and  sometimes  in- 
juriously pent  up,  and  then  worked  off  by  the  action  of  the  machinery 
of  the  law  and  not  unfrequently  by  the  collapsing  of  a  flue.  Three 
quarters  or  more  of  the  suits  now  tried  would  be  settled  in  an  hour  if 
each  side  could  learn  in  a  manner  somewhat  to  be  relied  on,  the  law  and 
the  facts  applicable  to  their  own  and  the  other  side.  To  attain  this  end 
let  a  new  and  preliminary  Tribunal  be  established — before  which  the 
parties  about  to  litigate,  should  be  heard  on  their  oaths,  with  discretion 
in  the  judge  to  call  in  witnesses  on  important  points  where  the  parties  dif- 
fered in  point  of  fact.  Compel  every  man  to  cite  his  neighbor  here,  be- 
fore he  be  allowed  to  sue  elsewhere,  and  let  the  adjudication  be  only  ad- 
visary,  and  not  binding.  But  at  the  same  time  let  several  penalties  be 
visited  on  the  man  who  after  refusing  to  listen  to  this  advice,  plunges  his 
neighbor  into  law,  and  is  found  to  be  in  the  wrong.  It  would  be  found 
that  whenever  two  honest  men  disagreed,  half  an  hour  before  this  tribu- 
nal would  settle  the  case,  send  both  away  satisfied,  and  what  is  also 
important,  generally  good  friends.  Such  a  court  would  save  hundreds 
of  thousands  of  dollars  per  year  to  this  community ;  it  would  dispense 


9 

with  the  services  and  salaries  of  three-fourths  of  our  present  judges,  spare 
the  present  cruel  sacrifice  of  the  time  of  jurors  and  witnesses  in  attend- 
ing court,  and  by  preventing  litigation  save  the  morals  of  the  communi- 
ties from  thousands  of  perjuries  which  now  infect  it.  Many  a  man  is 
willing  to  gain  a  cause  through  the  misrepresentations  of  weak  or  wilful 
witness,  who  if  put  to  his  own  oath,  would  from  pride  alone  disclose 
the  truth. 

Suppose  a  man  like  Ex- Judge  Edwards  to  be  the  Judge  of  such  a 
Court,  where  would  two  decent  men  be  found  who  would  set  up  either 
of  their  wills  or  judgments  against  his  advisary  decision,  with  all  the 
facts  before  him,  and  the  aid  of  his  learning,  integrity,  and  knowledge  of 
human  nature:  if  either  did,  and  the  Judge  in  the  end  should  be 
found  to  be  right,  the  obstinate  party  would  be  sure  to  be  sent  to  a  crimi- 
nal judge,  and  from  him  to  receive  a  good  natured  admonition  "  to  get 
out  stone  for  six  months." 

The  justice  of  this  Court  should  also  be  administered  gratis.  Indeed 
the  principle  of  the  exaction  of  taxable  costs  and  statute  fees  is  of  more 
than  questionable  propriety  throughout.  It  has  struck  me  often,  as  a 
disgusting  spectacle,  to  see  a  Judge  receive  a  dollar  for  yielding  a  matter 
of  common  justice  to  a  suitor ;  and  I  have  known  a  Judge  decide  a  mo- 
tion at  Chambers  one  way,  but  because  the  party  in  whose  favor  it  was 
made  would  not  pay  the  dollar  for  his  order,  he  reversed  his  decision  and 
received  the  dollar  from  the  other  side ;  putting  the  change  on  the  ground 
of  the  change ;  a  state  of  things  in  itself  demoralizing  and  pernicious. 
The  Constitution  has  said,  "justice  shall  neither  be  bought  nor  sold,"  and 
although  the  provision  had  not  probably  in  view  as  large  a  scope  as  the 
words  literally  cover,  yet  here,  as  in  other  parts  of  that  sacred  instru- 
ment, the  words  seem  to  have  a  strange  oracular  applicability ;  litiga- 
tion would  vastly  become  lessened  if  there  were  no  costs  to  be  paid  by 
the  parties  to  Judges  and  practising  Attorneys.  Nor  to  the  worthy,  in- 
telligent and  talented,  (and  hence  the  only  part  of  the  profession  which 
is  not  a  nuisance,)  would  this  state  of  things  be  an  injury.  Their  expe- 
rience and  observation  must  have  taught  them,  if  they  have  ever  reflected 
on  it,  that  it  is  for  the  good  which  they  did  their  clients  or  others  that 
they  have  been  best  paid,  and  that  the  lawyers  who  have  become  rich , 
have,  almost  without  exception,  become  so  from  the  gratitude  and  libe- 
rality of  their  clientage,  rather  than  from  the  trash  wrung  from  the  hard 
hands  of  their  unfortunate  opponents. 


UCSB   LIBRARY 


10 


Our  Jaws  and  their  application  need  remodelling  to  suit  the  advancing 
intelligence  of  the  age,  but  let  the  innovators  beware  how  they  entrust 
the  blacksmith  to  mend  a  watch,  or  a  politician  to  establish  a  code  of 
morality. 

COUNCILLARIUS. 


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